*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 2/29/96

TENTH CIRCUIT

AUBREY MCINTOSH, individually and

as the Personal Representative of the

Estate of Dierdre McIntosh, deceased,

Plaintiff - Appellant,

 and

KATHLEEN O’CONNOR, as an

involuntary party plaintiff,

 Plaintiff,

No. 95-1346

(D.C. No. 94-M-2166)

(D. Colo.)

v.

CITY AND COUNTY OF DENVER;

DAVID MICHAUD, Denver Chief of

Police; K. D. JACKSON, Denver Police

Officer; S. T. SICH, Denver Police

Officer; BUTCH MONTOYA, Denver

Department of Public Safety Manager, 

Defendants - Appellees.

 

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.

____________________________
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After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Plaintiff Aubrey McIntosh, proceeding in this court pro se, appeals from the

district court’s grant of summary judgment for the Defendants in this 42 U.S.C. § 1983

lawsuit. Mr. McIntosh alleged that his daughter’s equal protection and due process rights

were violated when the Denver police, Defendants in this action, failed to protect her

from her abusive boyfriend. The district court held that no constitutional violations

occurred. For the reasons that follow we affirm with respect to the due process claims but

reverse and remand for further discovery with respect to Mr. McIntosh’s equal protection

claim.

Mr. McIntosh’s daughter, Dierdre, was romantically involved with a physically 

abusive man, Paul Dugas. On May 11, 1992, Mr. Dugas severely beat Ms. McIntosh. 

Denver police investigated the incident. Pursuant to the City and County’s domestic

violence policy, the police obtained a warrant for Mr. Dugas’s arrest. They attempted to

locate Mr. Dugas but could not find him. The police did not notify other jurisdictions,

including other states, of the arrest warrant. Sometime after the May 1992 incident, Mr.
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Dugas and Ms. McIntosh left for Texas. Mr. Dugas was arrested twice for theft. Then,

on September 22, 1992, Mr. Dugas shot and killed Ms. McIntosh. The Denver warrant

was still outstanding.

In his complaint, Mr. McIntosh alleged that substantive due process required the

Defendants to protect Ms. McIntosh from domestic violence, that the Denver domestic

violence policy manual created procedural due process rights for his daughter’s

protection, and that the Defendants violated Ms. McIntosh’s equal protection rights

because they did not pursue domestic violence cases with the same vigor as other types of

assaults. The Defendants filed for summary judgment, asserting qualified immunity.

Additionally, they requested the district court to stay discovery until the qualified

immunity issue was resolved. The district court entered an order staying discovery and

subsequently granted summary judgment for the Defendants.

Generally, the substantive due process clause of the Fourteenth Amendment does

not create an affirmative duty on the state to protect its citizens from violence. DeShaney

v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 197 (1989). This rule may

not apply, however, where the state “affirmatively and directly changed the status quo.” 

Medina v. City and County of Denver, 960 F.2d 1493, 1497 n.5 (10th Cir. 1992). Mr.

McIntosh has simply failed to allege any facts which indicate that the Defendants
4

somehow changed the status quo. Thus, Mr. McIntosh’s substantive due process claim

fails.

Mr. McIntosh also has failed to point to any language in the Denver domestic

violence policy manual which would create a procedural due process right in the context

of this case. As the district court pointed out,

[t]he Denver domestic violence policy does not mandate affirmative action

by the police other than the issuance of an arrest warrant upon a finding of

probable cause. It does not direct any particular procedures to execute the

warrant. The police have discretion in conducting their investigation and

pursuing apprehension of the accused. They are left to their professional

judgment as to what measures are appropriate.

R., vol. I, No. 45, at 6. Thus, Mr. McIntosh’s procedural due process claim fails as well.

Finally, Mr. McIntosh argues that his daughter’s equal protection rights were

violated. Although the state has no general constitutional duty to protect its citizens from

violence, the state violates the equal protection clause if it selectively denies its protective

services to disfavored minorities. DeShaney, 489 U.S. at 197 n.3; see Watson v. City of

Kansas City, 857 F.2d 690, 694 (10th Cir. 1988). Specifically, the state violates the equal

protection clause if it provides less protection for domestic violence victims than it does

for other assault victims. Watson, 857 F.2d at 694. A plaintiff must show, however,

evidence of a policy or practice of such discrimination. It is not enough to show evidence

of the plaintiff’s own circumstances. Id. at 694-95. Here, the district court held that Mr.
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McIntosh’s claim failed because he “presented no evidence, either statistical or anecdotal,

that the Denver Police Department treated female victims of domestic abuse differently

from other assault victims.” R., vol. I, No. 45, at 3. Mr. McIntosh could not present any

such evidence, however, because the district court had stayed discovery. He had no

opportunity whatsoever to discover facts crucial to his case.

When a defendant asserts qualified immunity, the district court should stay

discovery until the immunity issue is resolved. Workman v. Jordan, 958 F.2d 332, 336

(10th Cir. 1992). In some instances, however, “discovery may be necessary before a

motion for summary judgment on qualified immunity grounds can be resolved.” Id. If

discovery is allowed, it should be “tailored specifically to the immunity question.” Id.

Here, discovery was necessary to decide Mr. McIntosh’s equal protection claim. If Mr.

McIntosh can produce statistical or anecdotal evidence consistent with the evidence

produced in Watson, then the Defendants are not entitled to qualified immunity and their

motion for summary judgment should be denied. If he fails to produce such evidence,

then the Defendants are entitled to summary judgment. Thus, we remand to the district

court with instructions to allow Mr. McIntosh to conduct discovery limited to his equal

protection claim. Nothing herein implies that the district court may not impose

reasonable limitations on the manner and scope of discovery.
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For the foregoing reasons, we AFFIRM in part, and REVERSE and REMAND in

part.

Entered for the Court

Monroe G. McKay

Circuit Judge